Douglas Michael Gill Stewart

This decision concerns the continuation of refusals motions in complex insurance litigation involving environmental claims at 26 mining sites operated by Vale Canada Limited.

The court addresses the proportionality and sufficiency of discovery efforts, the organization and resolution of thousands of discovery refusals, and sets out directions for further production and inquiry.

The ruling emphasizes the need for balance and proportionality in discovery, especially in large-scale litigation, and provides a framework for resolving outstanding discovery disputes ahead of trial.

This endorsement addresses motions by the defendant insurers to compel Vale Canada Limited to answer refusals arising from oral and written discovery in complex insurance litigation concerning environmental claims at 26 mining sites.

The court reviews the status of discovery, the parties' agreements, and the proportionality of further discovery requests, including the use of exemplar and bridge charts to manage voluminous refusals.

The decision provides detailed directions on categories of refusals, privilege claims, and the process for resolving outstanding discovery issues, emphasizing proportionality, cooperation, and case management to keep the matter on track for trial.

The applicants, trustees of two family trusts, sought rectification of sections of their trust deeds nunc pro tunc to correct a drafting error.

The error inadvertently prohibited the distribution of dividends from a family operating company (Signature Realty Inc.) to a corporate beneficiary (2267134 Ontario Inc. or "Holdco"), contrary to the parties' original intention for tax-efficient asset reduction.

The Canada Revenue Agency (CRA) had reassessed the trusts based on this prohibition.

The court applied the four-part Fairmont test for rectification, finding that a clear prior agreement existed, the instrument failed to accurately record it, the agreement was still effective, and rectification would carry out the agreement.

The court distinguished this case from situations involving retroactive tax planning, as the parties sought to correct a document that did not reflect their unchanged agreement, rather than to amend the agreement itself to avoid tax consequences.

The Attorney General of Canada did not oppose the application.

The defendant, a court-appointed receiver, brought a motion to dismiss the plaintiffs' action against it.

The plaintiffs had commenced the action without obtaining leave of the court or the receiver's written consent, contrary to section 215 of the Bankruptcy and Insolvency Act and prior court orders.

The court granted the motion, holding that obtaining leave is a strict condition precedent to bringing an action against a receiver, and dismissed the claims against the receiver with costs.

This appeal addresses issues of jurisdiction simpliciter and forum non conveniens in a complex international insurance coverage dispute.

Vale and RSA initiated actions in Ontario seeking coverage for environmental liabilities, primarily in Ontario, after Travelers commenced a similar action in New York.

The motion judge largely found Ontario had jurisdiction and was not forum non conveniens, except for North River.

The Court of Appeal dismissed the insurers' appeals, affirming Ontario's jurisdiction over them, and allowed Vale's appeal, finding Ontario also had jurisdiction over North River.

The court emphasized that a comprehensive general liability insurer underwriting Ontario risks connects itself to Ontario for jurisdictional purposes, and that the "first-to-file" rule does not automatically determine the appropriate forum.

A case conference was held to address the scheduling of several outstanding motions after the plaintiffs dismissed their counsel.

The court rescheduled the motions to the week of November 7, 2022, to be heard virtually.

The hearing of the motions was marked peremptory against the plaintiffs and their corporate entities, giving them time to retain new counsel without further delaying the proceedings.

A case conference was held to address multiple related actions.

On consent, the claims against Shahzad Siddiqui and Borden Ladner Gervais LLP were dismissed with prejudice and without costs.

The court directed counsel to confer regarding the potential release of individual defendants and established a timetable for scheduling upcoming dispositive motions.

A case conference was held to manage multiple related proceedings.

Counsel for the plaintiffs indicated a recommendation for the plaintiffs to agree to dismissals without costs in most cases, except potentially the claim against Grant Thornton LLP Canada, which requires leave to proceed.

The court directed that a new class action issued by one of the plaintiffs be case managed together with the existing matters.

Counsel were directed to advise on dismissals or agree on a timetable for dispositive motions by a specified date.

The applicants sought declarations concerning insurers’ duty to defend multiple opioid class actions, the insureds’ right to select a single defending policy, allocation of defence costs, exhaustion of SIRs and deductibles, and the terms on which insurers could receive defence-side reporting.

The court held that, subject to exhaustion of the relevant SIRs or deductibles, each applicant could select any single policy under which there was a duty to defend, and the selected insurer was required to pay all reasonable defence costs associated with covered claims even if those costs also furthered uncovered claims.

Time-on-risk allocation was accepted only as an equitable mechanism among insurers with concurrent obligations, not as a basis to reduce contractual defence obligations owed to the insureds.

The court further held that pre-tender defence costs could attract relief from forfeiture, that disputed SIR exhaustion issues required a trial, and that insurers seeking privileged defence-side reporting had to maintain robust ethical screens through a defence reporting agreement because both party-based and coverage-based conflicts were present.

Supplemental reasons issued to correct an error in the court's previous decision (2022 ONSC 12).

The court corrected paragraph 4 to clarify that Lloyds should not have been listed as a party challenging the forum of the action.

The plaintiffs brought an action against multiple insurers for indemnity regarding environmental damage.

Several foreign defendants failed to deliver statements of defence within the required time limits, and one was noted in default.

The defendants sought an extension of time to defend or bring jurisdictional motions, arguing the court should wait for the outcome of a parallel proceeding commenced by one of the insurers in the United States.

The court refused to delay the Ontario proceeding, finding no prejudice to the defendants in requiring them to respond timely, and ordered the defendants to deliver their statements of defence or motion records by a specified deadline.

The plaintiffs brought motions for approval of a settlement, class counsel fees, and representative plaintiff honoraria in two class actions concerning defective Takata airbags installed in Mazda, Subaru, and Toyota vehicles.

The settlement provides for an outreach program, out-of-pocket expenses reimbursement, and a customer support program.

The court found the settlement to be fair, reasonable, and in the best interests of the class.

The court also approved class counsel fees of up to $5,850,000 and an honorarium of up to $19,167 to be split among the representative plaintiffs.

The defendants brought a motion to dismiss the plaintiff's fraud action for inordinate and inexcusable delay spanning over nine years.

The plaintiff attributed delays to corporate restructurings, database corruption, and translation requirements.

The court found the delay inordinate and inexcusable, noting the plaintiff's responsibility to advance the action and the lack of compelling reasons for the multi-year inaction.

The court also found a substantial risk that a fair trial would not be possible due to fading memories of critical viva voce evidence, especially given the fraud allegations.

The motion was granted, and the action dismissed with costs to the defendants.

The defendants, Forever 21, Inc. and Forever XXI, ULC, brought a motion seeking a stay of action or to strike the Statement of Claim on the basis of a duplicative proceeding commenced in California.

The dispute arose from a contract between the plaintiff, Ryan ULC, and Forever 21, Inc., concerning HST and GST rebates.

The court applied the convenient forum test from Club Resorts Ltd. v. Van Breda, considering factors such as convenience and expense for the parties, the law to be applied, the desirability of avoiding multiple legal proceedings and conflicting decisions, and the enforceability of judgment.

The court found that the factors, on balance, favored the defendants, and granted the stay.

The plaintiffs, Arlene Stevenson and Mira Melien, brought a motion for certification of a class action against Mazda Motor Corporation, Mazda Canada Inc., and Subaru Canada Inc. for settlement purposes, along with approval of the notice plan, and appointment of administrators.

The class action concerned alleged economic loss arising from Takata airbag inflators in Mazda and Subaru vehicles.

The court found that all criteria for certification under the Class Proceedings Act, 1992 were satisfied, even with a less rigorous application in the settlement context.

The motion was granted, certifying the action for settlement purposes and approving the related relief.

The appellants appealed an order dismissing their motion for leave to commence a derivative action under the Business Corporations Act (OBCA) as statute-barred.

The Court of Appeal determined it lacked jurisdiction to hear the appeal, as section 255 of the OBCA directs appeals of orders made under the Act to the Divisional Court.

The appeal was transferred to the Divisional Court.

Following earlier rulings on a derivative leave motion in estate litigation, the court addressed outstanding procedural directions and the issue of costs for five related motions.

The plaintiffs sought substantial indemnity costs exceeding $144,000 for work connected primarily to the derivative issues.

Applying Rule 57 of the Rules of Civil Procedure and the proportionality principles discussed in Boucher v. Public Accountants, the court held that the requested amount far exceeded the reasonable expectations of the unsuccessful parties for a one‑day motion.

Substantial indemnity costs were denied.

The court fixed costs payable by the defendants jointly and severally at $55,000 inclusive of taxes and interest.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent was ordered to pay the appellant's costs fixed at $5,000, inclusive of GST and disbursements.

The appellant appealed a trial judgment awarding the respondent damages for breach of a contract to operate an off-track betting facility.

The trial judge had found the agreement was perpetual and awarded damages for an 11-year period without deducting the cost of sales from the loss of profits calculation.

The Court of Appeal allowed the appeal, finding the trial judge erred in her analysis of whether the contract was perpetual and in her calculation of damages.

A new trial was ordered to determine the appropriate notice period and recalculate damages.